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Commentary: Facebook, teachers and the law

This article first appeared in the St. Louis Beacon, Aug. 26, 2011 - This week, teachers in Missouri's public schools are busily preparing for a return to the classroom after what probably seems to them a too short summer break. Many teachers also, because of a new Missouri law that goes into effect August 28, are busily de-friending their students from Facebook.

Legislators say the law -- the Amy Hestir Protection Act, which prohibits teachers from having a website that "allows exclusive access with a current or former student" - is necessary to protect children from sexually predatory teachers. The ACLU, which is already threatening to seek an injunction against the law, says the law risks chilling a lot of helpful, and anyway constitutionally protected, speech.

Both sides need to take a deep breath.

To the claim that the law is an unconstitutional infringement of free speech, the best answer is probably that we'll have to wait and see.

The law, it's true, is ambiguous and poorly worded, but that ambiguity might cut in a way favorable to teacher-student Facebook communication. So long as it's not e-mail to e-mail, but simply posts on a student's wall, teachers might be OK. They can still be friends with their students: they just can't engage in private communication with students that either the school or parents can't in principle be privy to. This, legislators now say, is all they were really after, because it's when interaction gets private that it can get dangerous.

And so we will have to wait and see how the law gets applied, even if it seems a little scary and overbroad on its face. This will happen in the next phase of the law's enactment - when individual school districts have to set up their own particular standards for teacher student contact online by January of next year.

The law may even be constitutional as it is. Although the current Supreme Court has been largely free-speech friendly, state employer regulation of employee speech is a different, and more restrictive, part of free speech law. If the speech is made pursuant to a teacher's duties - and teacher-student communication arguably nearly always is - or if the speech made by the teacher is just chit-chat and not about, say, politics or what the court calls "matters of public concern," the state can regulate (or even ban) it under the Constitution.

But as is so often the case, the fact that a law might be constitutional doesn't mean it's a good law. In fact, such broad and blunt top-down solutions rarely are. What the law is forcing districts to do - come up with their own policies for regulating online communication between students - is something those districts should have been doing anyway, on their own. And some have. But we didn't need a law to do this, just concerned parents and citizens as well as teachers behaving prudently and responsibly.

Sometimes the best way for constructive change to happen is organically, from the bottom up, with each district figuring out for itself what extent teachers and students can be in touch online and outside of class, and educating both teachers and students on the appropriate limits to out-of-classroom relationships. What we have now, instead, is a dictate from on high, in a poorly worded law (even some of its proponents admit this), that is only sowing confusion and will probably lead to litigation. Whether all of this represents a step forward in dealing with bad teachers is certainly open to debate.

Chad Flanders teaches at Saint Louis University School of Law. 

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